Gough & Gilmour Holdings Pty Limited & Ors v Caterpillar of Australia Limited & Anor

Applicants: Mr R M Goot SC with Mr A Gotting of counsel Solicitor: Ms E.G. Pritchard LEGAL REPRESENTATIVES: Harmers Workplace Lawyers Responents: Mr P M Hall QC with Mr A Moses of counsel Solicitor: Mallesons Stephen Jaques

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J

Matter No. IRC5227 of 2002 GOUGH & GILMOUR HOLDINGS PTY LIMITED & ORS v CATERPILLAR OF AUSTRALIA LIMITED & ORS Application under s106 of the Industrial Relations Act 1996

EX TEMPORE JUDGMENT [2003] NSWIRComm3 Application 1 A Notice of Motion was filed on 8 January 2003 by the applicants in proceedings which are continuing before Boland J. The Notice of Motion sought relief in relation to an extension of time to consider and to allow the filing of applications for Leave to Appeal and Appeal. The Notice of Motion also sought orders in the form of declaratory relief and reads: 1. A declaration pursuant to s154 of the Industrial Relations Act 1996 (NSW) ("Act"), that the twenty one (21) day time period prescribed in s189(1) of the Act for appealing from the decision of his Honour Justice Boland given on 19 December 2002 ("Judgment") herein, does not expire until the twenty one (21) days after his Honour Justice Boland has issued a decision and/or final orders following the further hearing on the questions of whether the Applicants are entitled to any alternative relief and, if so, the form of such relief.

2. Further or in the alternative to paragraph 1, an order pursuant to s189(2) of the Act 1996 extending the time for the Applicants to appeal from the Judgment, to a date twenty one (21) days after his Honour Justice Boland delivers a decision and/or makes final orders following the further hearing on the questions of whether the Applicants are entitled to any alternative relief and, if so, the form of such relief, or until such time as the Commission considers appropriate.

3. An order that the hearing of this Notice of Motion be expedited.

4. An order pursuant to s181 of the Act that the costs of and incidental to this application are to be costs in the cause.

5. Such further or other orders as the Commissions sees fit.

2 At today's hearing, the applicants provided a document headed "Alternative Relief Sought In The Notice Of Motion", which amended the Orders in the Notice of Motion and sought in the alternative relief as follows: 1. That the hearing of the Notice of Motion be adjourned to 21 January 2003 before Justice Boland.

2. That the expiration of the time period specified in s189(1) is hereby extended pursuant to s189(2) until the determination of the Notice of Motion, or further order of the Commission. Accompanying the Notice of Motion was an affidavit of Emma Graham Pritchard, solicitor. Some objection was raised by the respondents as to content of the affidavit. Those sections objected to were admitted as submissions.

3 Ms Pritchard was required for cross-examination and entered the witness box. Her evidence offered the court a comprehensive summary of all endeavors taken since publication of judgment on 19 December 2002 and the need for further time to consider whether to and finalise the applicants' grounds for Leave and Appeal. The applicants then closed their case.

4 The respondents chose not to lead evidence. The court, in accordance with the relevant authorities, to which I will later refer, sought clarification from the respondents as to whether they claimed to suffer any prejudice in relation to the application for an extension of time for Leave to Appeal and Appeal. The respondents submitted they would suffer prejudice, as Boland J has listed the matter on 21 January 2003 and, if further time was allowed, it would delay conduct of this part heard matter. The issues before Boland J on 21 January 2003 are: further programming of the hearing of the s106 application and argument as to alteration to terms presently in place which direct themselves to the question of whether the respondents have been or will continue to be unreasonably restrained. The Act 5 The application to extend time is made under s189(1) and (2) of the Act: (1) An appeal to a Full Bench of the Commission under this Part must be made within 21 days after the date of the decision appealed against or within such further time as the Full Bench or the Commission constituted by a Presidential Member allows. (2) Further time may be allowed, either before or after the end of that 21 day period.

The Legal Principles 6 The principles to be applied to an application to extend time for Leave to Appeal and Appeal are set out in the Workcover Authority of New South Wales (Inspector Salmon and Parkes Council) (1996) 70 IR 298. These principles have been applied in a number of matters in this jurisdiction. A summary of the application of the principles is found in Anthony Andrew Cavacuiti & Anor v Toyota Motor Corporation Australia Limited, [2002]NSWIRComm 341: In applying those principles to this matter I note some particular points of emphasis: 1. The exercise of the Commission's discretion to extend time to appeal is not constrained by the requirement of some court rules that special circumstances be demonstrated Brady v Kennedy t/as 'Sardines' (at 264). 2. There is a wide discretion to extend time where the justice of a particular case requires that outcome: Brady v Kennedy t/as 'Sardines' (at 264 ); Tadic v Beslic at [22]. In exercising the discretion to extend time the Commission may consider a number of factors, such as the length of delay (see Jess v Scott (1986) 12 FCR 187 (at 195); Gallo v Dawson (1990) 64 ALJR 458 (at 481); and Salter Rex & Co v Ghosh [1971] 2 QB 597 (at 601); whether any prejudice would be suffered by the respondent by reason of the granting of the extension of time (see Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 (at 6) and LEP International v Caine (at [57]); whether there is a reasonable explanation for the failure to file the appeal within time (see LEP International v Caine (at [50]); whether the delay was due to an error or mistake by a legal advisor see Brady v Kennedy t/as 'Sardines' (at 269) and Skelly v Prouds Jewellers (at 6) and the prospects of the appellant succeeding in the appeal (see WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (at 299). However, the ultimate exercise of discretion is governed by the requirements of justice in a particular case. In Skelly v Prouds Jewellers it was held (at 6): 'The Commission in taking all relevant matters into account must endeavour to do justice between the parties having regard to the circumstances before it'". 7 Reliance is also placed upon the words of Wright J, President in New South Wales Teachers' Federation & Ors and New South Wales Office of The Board Of Studies [2001]NSWIRComm 1: I should however note that many of the principles discussed in that judgment are relevant here. For example, that the grant of an extension of time is not automatic and the object of statutory provisions fixing a time to appeal is to ensure, so far as s reasonable, that the times fixed are obeyed. However, it is clear on the authorities that the times fixed - be they fixed by rules or statute - are not intended to be instruments of injustice and generally speaking the discretion to extend time is given for the sole purpose of enabling justice to be done between the parties. In that regard the authorities make clear (Parkes Council at 300): The discretion can only be exercised in favour of an extension of time upon proof that compliance with the rules will work and injustice upon the applicant therefore which necessarily requires regard be had to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application to extend time.

Consideration 8 I have considered what has been placed before me related to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the granting or refusal of the application to extend the time for appeal. I note particularly the evidence of Ms Emma Graham Pritchard who was cross-examined by Mr Hall QC for the respondents. I found her evidence straightforward and believable, especially as to the matter at issue which I see as the application for an extension of time for the applicants to allow for a decision to and associated preparation of any application for Leave to Appeal and Appeal.

9 I have also considered the submission as to the prejudice which may be suffered by the respondents if any extension of time is granted. I particularly note the respondents have met some success through the judgment of Boland J on 19 December 2002 in meeting the applicants' claim and that success could reflect in an alteration of the interim orders which restrain the respondents. I further note the matter is listed before Boland J again on 21 January 2003 to address such issues.

10 Boland J, since 19 December 2002, has dealt with three other Notices of Motion over some three days of the court's time and delivered a further Interlocutory Judgment dated 27 December 2002 since he delivered his judgment to which this application is directed. Since judgment there have therefore been other legal issues requiring the attention of the legal advisors in this litigation not only the intervention of the law vacation.

11 I also consider relevant the complex nature of the issues and the very comprehensive judgment of his Honour delivered near the end of the law term. I accept the evidence of the work which has been done in preparation for the decision as to whether an Appeal and Leave to Appeal is filed. I accept there has already been one conference directed towards obtaining those instructions.

12 In line with the authorities and in consideration of the relevant matters, I am unable to assess whether there are meritorious grounds of appeal as I have no material before me in order to consider the issue. I also reject the submission there is any reason for me to address the question as to whether a matter part heard can go before the Full Bench on Appeal. There is much authority on such an issue. It will be, in my view, a matter for the Full Bench as to whether this matter is part heard and or whether the judgment of Boland J is in a form which can go on appeal if an application for Leave to Appeal is filed. 13 In the use of the court's discretion and taking into account all the relevant matters before me by both parties I must endeavour to do justice between them.

14 I reject the alternative relief sought in the Notice of Motion.

15 I reject the application for Order No 1 to extend, by declaration, the time for Appeal until after Boland J makes further decisions and/or final orders.

16 I extend the time for any application for Leave to Appeal and Appeal to 12 noon on Monday, 20 January 2003.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.